Positive Action under the Equality Act

The key point about the Equality Act’s positive action provisions is that positive action is entirely voluntary, there is no requirement for an employer to use either the general provisions or those relating to recruitment and promotion.  The Act allows employers to recruit or promote someone from an under-represented or disadvantaged group, it does not mean that you have to.

From 6 April where it has a choice between two or more candidates who are “as qualified as each other” employers can choose to improve diversity in their workforce.

The new positive action provisions mean that it is not unlawful to recruit or promote a candidate who is of equal merit to another candidate, if the employer reasonably thinks the candidate:

• has a protected characteristic that is under represented in the workforce; or
• that people with that characteristic suffer a disadvantage connected to that characteristic.

However, positive action does not allow an employer to appoint a less suitable candidate just because that candidate has a protected characteristic that is under-represented or disadvantaged.

Ultimately the question of whether two candidates are of  ’equal merit’ is one for the tribunals to determine.

The Government Equalities Office (GEO) has published non-statutory guidance, which is available here.